More Liability Cases. (Legal Briefs)

Sikora, Vincent A., Journal of Environmental Health

Environmental health officials generally recognize that, in some instances, they or their employer may be held liable for injuries suffered by another or for damages to the property of others. What constitutes public employee or government tort liability varies from state to state. Previously, this column discussed a variety of liability cases, from several states (see the June 2001 issue of the Journal, pages 36-37, and the June 2002 issue, pages 29, 14). The first case in this month's column has some new twists. It concerns the liability of a county board of health in Georgia for the failure of a temporary on-site sewage disposal system.

The second case involves questions about the circumstances under which a state law supersedes local health and zoning ordinances. At issue is the raising of carrier pigeons in Illinois.

The last three cases all involve personnel matters. Case #3, from New Jersey, concerns the pay due a county registered environmental health specialist. The next case is about the proper pay grade classification of a sanitarian in the Rhode Island Office of Food Protection. The last case is about the qualifications necessary to be a county environmental health specialist in North Carolina.

Case #1: No Liability for Failed Sewage Disposal System (1)

Douglas County, Georgia, had a Water and Sewer Authority that provided public sewers in certain areas of the county The Douglas County Code allowed a temporary septic system to be installed if there was likely to be a connection to a central sewer system within two years. With that qualification, the health department approved an on-site system for a subdivision lot, and a home was constructed.

Six years later, in 1995, a couple wanted to buy the home. During the intervening time, the Water and Sewer Authority had decided, because of budget constraints, not to extend sewers to the subdivision.

The prospective homebuyers asked the county board of health to inspect the sewage disposal system. Unbeknownst to anyone, the existing owners, in order to hide any sewage problems, had placed 41/2 feet of soil on top of the septic system. The health agency visually inspected the system and notified the prospective buyers that the system appeared acceptable. The health agency did not mention that the system was six years old and was a temporary system supposed to last only two years. A letter from the agency did, however, say:

Issuance of this visual inspection letter for an on-site system shall not be construed as a guarantee that such system will function satisfactorily for a given period of time; furthermore, said representatives do not, by any action taken, assume any liability for damages which are [ca]used, or may be caused by the malfunction of such system.

Nonetheless, the buyers purchased the house. A few weeks after they'd occupied the house, the sewage disposal system failed. The county board of health notified the new owners of the violations. The family abandoned the home, and they as well as their mortgage company, sued the board of health and the Water and Sewer Authority.

In Georgia, a board of health has liability only if its actions have created a nuisance that rises to the level of an inverse condemnation, or if it has failed to appropriately perform a continuous or regularly repetitious required act. Mere negligence or approval of a construction project is insufficient. Indeed, a single act of negligence is generally insufficient.

Since the health agency did not own and had no obligation to maintain the on-site system, the court found that it had no liability Even if the visual inspection was negligent, it was only a single instance, which is insufficient to create liability. A minority of judges disagreed with that conclusion and would have held the health agency liable for failure to inform the buyers that the system had exceeded its approved life expectancy. …

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